The panel discussed the First Circuit Court of Appeals case, which involved pension plan termination liabilities, and the court’s decision that a Sun Capital fund was in an active trade or business for ERISA purposes. This unusual decision could have significant tax and other consequences for private equity funds if they are held to be in an active trade or business.

“I think if the Sun Capital decision were a Shakespearean play you would be hard to classify it as a comedy, a tragedy, a history, or a drama. It’s got a little bit of the elements of everything,” stated Mr. Fenn.